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A to-do list for the new Law Minister

With only a year to go before the Lok Sabha elections, the new Law Minister has his work cut out for him. On paper, Kapil Sibal is perhaps the United Progressive Alliance’s best man for the job. As a lawyer, he understands legal technicalities; as an experienced hand, he also understands the working of the government. There are several pressing reforms that demand immediate action by the Law Ministry, most of which have unfortunately been either completely ignored or lie unimplemented.

In part, this is attributable to the frequent shuffling of Ministers that the Law Ministry has seen under the UPA government in the last five years. Some blame must also be attributed to the difficulty in getting the necessary political consensus for the more contentious reforms. In the next one year, it would be wise for Mr. Sibal to set modest, achievable goals; and focus on the most pressing reforms. Four key areas of reform that require immediate attention are — appointment of judges; working of the judicial system; modernising key economic legislation and restoring the independence and dignity of the law officers of the government.

Judicial Appointments Commission

The appointment of judges to the Constitutional Courts is presently done by the collegium of judges of the High Court and the Supreme Court. The controversies surrounding the proposed appointment of Justice P.D. Dinakaran, and the impeachment of Justice Soumitra Sen show that this system of appointment has surely failed. Recent political consensus also appears to be against the collegiate system of appointment of judges, and in favour of it being replaced by a Judicial Appointments Commission (JAC).

It would however be naïve to believe that the mere setting up of a JAC, without anything more, can be the solution to the present problems plaguing the appointment of judges. The Ministry must identify transparent and well-defined criterion based on which the JAC would function and exercise its powers. It is also important to note that the setting up of a JAC cannot be done through legislation alone. The collegiate system of appointment of judges was instituted by the judgments of the Supreme Court in the three
Judges
cases; and to set up a JAC and in effect reverse the holding in that decision, it is imperative to “remove the foundation or the basis” on which the judgment was passed. Since the
Judges
cases have rendered the word “consultation” (with the judges) in Articles 124 and 217 of the Constitution to mean a virtual “concurrence,” it would be essential to pass a constitutional amendment to amend the text of those Articles, lest the validity of the JAC be open to challenge on this ground. The UPA government does not have the numbers to pass such an amendment by itself; and it would require a consensus of parties across the political spectrum to do so.

Pendency of cases

The Indian judicial system is overworked, understaffed and bursting at the seams. Pendency of cases in the High Courts and the Supreme Court is at an all-time high. Many have argued that the solution to this is to increase the number of judges — we have approximately 11 judges per million persons, as opposed to the global average of around 50 judges per million. However, the judge-population ratio is, strictly speaking, irrelevant to understand the issue of pendency. What is relevant is the judge-pendency ratio, the impact of which has sadly not been examined in policy debates. More importantly, an empirical study conducted in 2010 (Kannan) revealed that the problem with the working of the judicial system lies elsewhere. It concluded that (assuming no fresh cases are filed) it would take approximately nine months to clear the entire backlog of cases in Tamil Nadu. Most States in India had somewhat similar figures, and only a few needed more than two to three years to clear their entire backlog. These numbers demonstrate that the problem of pendency is not insurmountable, and the answers to streamlining the working of the judicial system are not to be found in resolving pendency by increasing the number of judges. They lie elsewhere.

National Litigation Policy

The trouble with the working of the judiciary can be traced to the existing institutional structure. Most cases in the courts are fought by or against the state or its agencies, and serious efforts must be made to transform the government into an efficient and responsible litigant. A well-drafted National Litigation Policy was mooted under the aegis of Veerappa Moily in 2010, but remains largely unimplemented. Similarly, provisions for imposition of actual costs on litigants would reduce frivolous law suits, and cut down on unnecessary adjournments. The executive, the legislature and the judiciary need to work together to implement these institutional changes, and the lead must be taken by the Law Minister.

While the larger reforms of the legal system are carried on, it would also be useful, as a more immediate measure, to improve the quality of justice delivery in high value commercial cases, especially given the strong co-relation between foreign investment and a stable, predictable and efficient legal system. The Commercial Division of High Courts Bill appeared to be a step in the right direction but suffered from serious drafting flaws and had to be scrapped in December 2011 despite having been passed by the Lok Sabha. Salman Khurshid, the Law Minister who spearheaded this Bill, had promised a revised version of the Bill, but it has remained in cold storage. It is hoped that it will be taken up again.

There are many important economic laws that require the immediate attention of the legislature. The proposed Companies Bill 2012 that seeks to replace the Companies Act, 1956 is pending vote in the Rajya Sabha, having been passed by the Lok Sabha. Key amendments to the Arbitration and Conciliation Act, 1996 which reduce judicial intervention and streamline the process of alternative dispute resolution, have not been passed, despite a consultation paper being prepared under the stewardship of Mr. Moily. Similar amendments are required to further strengthen the regulatory framework in the insurance and banking sectors — both of which are presently governed by antiquated legislation.

The law officers of the government, the Attorney General, the Solicitor General and the Additional Solicitor Generals, do not merely serve their clients, but owe an important duty to the court and perform critical constitutional functions. The Constitution in Article 76, in fact, enjoins the President to appoint “a person who is qualified to be appointed a Judge of the Supreme Court” to be the Attorney General. In the recent past, several law officers appointed under the UPA government have compromised the dignity of their office while the upright ones have preferred to quit.

Institution eroded

The involvement of two law officers in the recent Coalgate controversy has tarnished the credibility of not just the individuals in question, but of the offices they hold. The erosion of this institution does not augur well for Indian democracy. It might be useful to consider designating the JAC which is proposed to be instituted for appointing judges to the Constitutional Courts, to also appoint the law officers. This will not only insulate their offices from unnecessary political pressures but also reduce any charge of the government’s management of sensitive cases before the Constitutional Courts.

Mr. Sibal is an old hand with a hard road ahead of him, and it is hoped that he will make the most of his position as Law Minister. The confidence of the public in the justice delivery system has been severely eroded, not just due to recent events but also due to the various structural and institutional weaknesses that have crept into the present system. H.M. Seervai said that “the Constitution confers power, but it does not guarantee that the power could be wisely exercised.” Equally, it can be said that the Constitution confers power but it gives no guarantee that it will be worked by men of high character, capacity and integrity. If the Constitution is to be successfully worked, an attempt must be made to improve the political atmosphere. It is hoped that the new Law Minister will be up to the task that is cut out for him.

(Anirudh Wadhwa is a New Delhi-based lawyer)

Among the areas of reform that need urgent attention are appointment of judges, working of the judicial system, and restoring the independence of government law officers